A convicted hijacker has been set free following a constitutional judgment that has created a crucial legal precedent, reports Mungo Soggot
IN a landmark constitutional judgment, a man convicted of hijacking and attempted murder was released on Tuesday after only 15 months’ imprisonment as he had not been offered free legal advice.
Patrick Mgcina (30) was found guilty of hijacking and attempted murder after shooting a couple in Klipspruit, Johannesburg.
He was serving his sentence in Modderbee prison when the Johannesburg High Court found that the magistrate who convicted him had not informed him of his right to a lawyer at the state’s expense.
The Constitution specifies that citizens have the right “to have a legal aid practitioner assigned to the accused by the state, and at state expense, if substantial injustice would otherwise result, and to be informed of this right”.
Lawyers say the judgment has created a crucial precedent and could have a huge impact as magistrates will now be forced to give accused people who do not have lawyers careful explanation of their constitutional right to representation.
Mgcina insists, as he has throughout, that he was innocent. “I have never done it [hijacking],” he says.
Mgcina told the Mail & Guardian in an exclusive interview that on August 16 1994 he was walking in Klipspruit, Johannesburg, to meet a woman friend when he was approached by three armed men. He hid in a yard. “When I got out a policeman pointed a gun at me and said I was one of them. He [the policeman] said he could see by the clothes I was wearing – short pants and a striped T-shirt.”
Mgcina lives with his mother in Soweto in a tiny, four-roomed house. His three children used to live there and he hopes they and their mother will return. Before he was arrested he was a spray painter and panel beater. When he was interviewed this week he said he intended to go and visit the man who really did do the hijacking – who has been found guilty of the crime and is serving his sentence in the Johannesburg prison.
Mgcina says that last October, the police came to his mother’s home to say they had the wrong man and that he was innocent. They also informed his mother who the real culprit was. Despite this, Mgcina remained in jail for another six months.
Mgcina says the woman whom he was alleged to have hijacked never testified at his trial – only her husband did. He says the “complainant”, who claimed to have identified him by his clothing, admitted to the magistrate that the police had told him what Mgcina was wearing when they visited him at the Chris Hani Baragwanath Hospital after the incident. “The magistrate said nothing …”
He says the police sergeant who testified in the case claimed his shorts were blue- green and the hijack victim could not identify the colour. But, he says, his shorts in fact were brown.
Mgcina was also charged with illegal possession of a firearm, but says no firearm was produced in court. “I tried to tell the court it was not me.”
Mgcina says the magistrate was not interested in his protestations, but vowed to make an example of him. He says the prosecution failed to tell the court that he had a prior conviction – a 20-year sentence for murder and housebreaking. He served only nine-and-a-half years of that sentence because he was a first offender.
Mgcina adds that he applied for legal aid when he was first imprisoned but was refused. The magistrate in his case never told him of his constitutional right to a lawyer.
Once at Modderbee, a law student convicted of fraud encouraged him to fight on. Mgcina ended up securing the services of the Legal Resources Centre’s Wim Trengove, SC, one of South Africa’s most eminent constitutional lawyers.
“I’ve wasted my time. Oh, that place .” he says, referring to Modderbee. “It is not a man’s place. I saw someone killed right before my eyes … Warders give [different prison gangs] knives to fight.”
Mgcina says he was only told of the high court’s decision on Tuesday morning, although the court judgment had been handed down the previous Friday. Attorneys at the Legal Resources Centre tried to contact him on a public phone at the prison before then. He hitched a lift home as the R20 he had at the prison was not enough to pay for transport between Benoni and Soweto.
Mgcina is going to seek legal advice today about receiving compensation for his treatment. “It’s not right,” he says.